In the recent cases of Smith v. Phillips, and Rushen v. Spain, the United States Supreme Court recognized that judicial review of ex parte contacts with a sitting jury may raise a number of separate but interrelated constitutional rights: (1) the right to an impartial jury; (2) the right to a due process post-trial hearing on jury bias; (3) a possible due process right to a mid-trial hearing on jury bias; (4) the defendant's right to be present at such mid· trial hearings; and (5) the right to be represented at such mid-trial hearings. As Justice Stevens noted in his concurring opinion in Rushen, confusion abounds in identifying these rights and applying them in a factual context. This article suggests that the various rights and procedures can best be understood by distinguishing between post-trial and mid-trial inquiries into jury bias.
Ronald J. Bacigal, Hearings on Jury Bias or Misconduct, 10 Va. B. Ass'n J. 20 (1984).